On January 8, 2018, U.S. Citizenship and Immigration Services (USCIS) clarified that it was not considering changing its interpretation of the American Competitiveness in the Twenty-First Century Act (AC21) which provides for H-1B extensions beyond the six-year limit if an individual is the beneficiary of a Form I-140 (Immigrant Petition) but is not able to adjust status to permanent residence (apply for “green card”) status due to per-country limits. However, USCIS did indicate that is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American executive order, including conducting a thorough review of employment based visa programs. As information becomes available, we will provide regular updates.
Several news agencies have been reporting that the Department of Homeland Security (DHS) may change how it adjudicates H-1B extensions. As a reminder, the H-1B category is generally designed for foreign professional workers holding a university degree, and it authorizes the foreign professional to work in the United States in a “specialty occupation.” For most professional positions, the H-1B classification is the only visa category available, and it is generally limited to a duration of 6 years. However, in certain circumstances, the H-1B limit may be extended beyond the 6 year period. The American Competitiveness in the 21st Century Act (AC21) provides that DHS may grant an H-1B extension if an individual is the beneficiary of a Form I-140 (Immigrant Petition) but is not able to adjust status to permanent residence (apply for “green card”) status due to per-country limits. Since AC21 was passed, such H-1B extensions have been routinely granted in 3 year increments (as long as the individual is otherwise eligible for H-1B status).
Various news reports have indicated that the current administration will no longer grant such extensions. However, there has been no formal or public announcement of such change, and if any changes are implemented, it is likely to be subject to the rulemaking process under the Administrative Procedure Act. Accordingly, at this time, DHS continues to grant such H-1B extensions in 3 year increments. As information becomes available, we will provide regular updates.
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